Opposing Arguments by the District Attorney and ICE Attorney

You just hired a criminal defense attorney who filed a compelling motion to vacate your conviction. The motion is based on ineffective assistance of counsel because your prior attorney failed to advise and defend you against the immigration consequences of your plea. Is it a home slide from here? In other words, can you be rest assured that your motion will be granted and your forever record clean for immigration purposes? No, not yet.

In criminal court, there are three parties: the defense (you and your attorney), the judge, and the district attorney. Whenever you file a motion in court, it is the district attorney who acts as your adversary- opposing the motion and showing the judge the other side of facts and law. Thus, the judge, in making his decision, will be considering both your argument and the argument of the district attorney.

In your case, what will be the district attorney’s argument? The district attorney may argue that your prior attorney’s duty to advise did not come about until March 31, 2010, when the Supreme Court case of Padilla v Kentucky, 559 U.S. 356 (2010) was decided.[1] Accordingly, if your conviction became final before this date, the district attorney will argue that you cannot benefit from Padilla’s holding.

What will be your rebuttal argument? Although the district attorney may be correct for other states, this is not the case for California. States must enforce minimum federal constitutional standards, but are free to adopt additional protections.[2] California has held defense counsel’s failure to advise a defendant concerning the actual adverse immigration consequences to be ineffective assistance of counsel since 1987, so California courts do not need Padilla to be retroactive to protect this important constitutional right. The precedent case that stands for this proposition is People v. Soriano (1987) 194 Cal.App.3d 1470, 1478-79. The most that can be said against Soriano is that it reached the correct federal constitutional conclusion earlier than did the United States Supreme Court, not that it is invalid.

What other argument might the district attorney make? You should also be aware that the district attorney may bring up the case of In re Resendiz (2001) 25 Cal.4th 230, 249-250, in which the California Supreme Court in 2001 stated in dictum that it was “unpersuaded” as to whether a failure to advise was ineffective assistance of counsel. However, In re Resendiz only addressed affirmative misadvice, which is different from the failure to give advice. To understand the difference between a failure to advise and affirmative misadvice, see Cleaning Criminal Records (Post Conviction Relief). Moreover, In re Resendiz did not overrule People v. Soriano or People v. Barocio, (1989) 216 Cal.App.3d 99 (ineffective assistance of counsel where defense counsel failed to file Judicial Recommendation Against Deportation or seek 364 day sentence.)

Assuming you prevail in criminal court against the district attorney, and your criminal defense attorney successfully vacates your conviction and renegotiates your plea, you still cannot be rest assured. This is because now the there is an additional step: to file a motion to reopen your immigration case. And, now there is a new adversary: the ICE attorney.

What arguments will the ICE attorney make? The ICE attorney will try to show the immigration judge that although your conviction has been vacated in the criminal context, it still exists for immigration purposes. S/he will claim that your motion to vacate was not based on cause or upon specific procedural and/or substantive violations of state law; rather, that it was based on your immigration hardship and/or your rehabilitative actions. For more information, please read: Cleaning Criminal Records (Post Conviction Relief).

If you want to clean your criminal record, call us today for a free consultation at (212) 321-0226. Your Lavy Lawyer will not only get rid of your conviction, but also you obtain legal status in the United States.



[1] See Chaidez v . United States , 133 S.Ct. 1103 (2013) (finding Padilla was not retroactive)

[2] See Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842

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